September 28, 2020

In this hypothetical question posed by a FELTG reader, a bargaining unit employee (Employee A) reported that a non-bargaining unit employee (Employee B) told another non-bargaining unit employee (Employee C) that their mutual supervisor said Employee C was “attractive.”

The FELTG reader said that such a conversation never took place and considered it slander against the supervisor. And based on recent interactions, it appears that this “slander” made it out to the rest of the staff.

The questioner wrote:

Given the gravity of the misconduct, and the ripple effect it could cause, and may have already started (sexual harassment complaints, lowered morale, strain on working relationships, damage to supervisor’s career) would a suspension be recommended, and a letter of reprimand? What if Employee B is also facing a Letter of Counseling for other inappropriate comments to other employees?

In FELTG training, you stated that a suspension is not a deterrent to misconduct, and that GAO supports this. Given that there are two victims and other affected parties in this hypothetical scenario, what would be the recommended penalty?

There is a lot going on here, and as a training company we can’t give legal advice to this specific scenario. We’d suggest that the supervisor contact the Labor/Employee Relations specialist or an OGC attorney to work through the problem. However, we can speak to the principle in general.

If an agency supervisor is considering discipline for Employee B’s conduct, then there would need to be some type of inquiry or investigation so the agency could determine whether there was a preponderance of the evidence that the employee violated a workplace rule or expectation. [Editor’s note: Perhaps the most challenging investigations involve harassment claims. Join FELTG President Deborah Hopkins and FELTG Instructor Katherine Atkinson for Conducting Effective Harassment Investigations October 5-7. Classes run from 12:30 pm – 4 pm ET each day.]

Evidence could be from personal observation, copies of emails from people complaining about the rumors, statements from other people who were told the rumor, video recordings, or things like that. The evidence gathered during the inquiry will also help the supervisor determine the appropriate penalty using the Douglas factors.

The penalty factors need to be considered independently for this employee and this act of misconduct, and OPM regulations say that the proposing and deciding officials are responsible for proposing and ultimately determining the appropriate penalty. There is not one firm answer we can give, such as “a reprimand is too weak” or “a removal would be justified” because we are not privy to the Douglas factors in this employee’s case. However, supervisors get broad discretion to determine what is appropriate based on the factors such as the nature of the offense, the employee’s performance, trust and confidence in the employee, and more.

The bottom line: Whatever penalty the proposing (and ultimately deciding) official deems appropriate, and can justify through the Douglas factors, should be legally defensible. We have seen other cases involving similar misconduct where agencies have chosen to reprimand, or suspend, or remove – and the entire range has been upheld based on the penalty factor justification.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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